Afb18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 13
•12 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AFB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 13
File number(s): MLG 107 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 12 January 2024 Catchwords: MIGRATION – protection visa application – application for judicial review – whether the Tribunal considered the risk of harm to the second applicant in the event that she was returned to Iran and did not comply with dress requirements – finding that Tribunal did not consider such risk of harm – whether the Tribunal failed to consider evidence given in respect of the experiences of a third party’s imprisonment and rape – finding that the Tribunal considered fear of imprisonment and rape – jurisdictional error established – application for review allowed Legislation: Migration Act 1958 (Cth) s 476 Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2013) 236 FCR 593
DQU16 v Minister for Home Affairs (2021) 273 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 12 September 2023 Place: Hobart Counsel for the Applicants: Mr Murphy Solicitor for the Applicants: Victoria Legal Aid Counsel for the First Respondent: Mr Fitzgerald Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 107 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AFB18
First Applicant
AFC18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
12 JANUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent dated 20 December 2017.
2.A writ of mandamus issue directed to the Second Respondent as constituted by a different member to reconsider and determine the Applicant’s application for review according to law.
3.Any application for costs is reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
On 16 January 2018, the Applicants filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division (“the Tribunal”) dated 20 December 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth)(“the Act”).
BACKGROUND
The Applicants are non-citizens who applied for protection visas on 1 August 2013, which were refused by a delegate of the First Respondent on 2 February 2015. The First and Second Applicants are married.
The Tribunal conducted a hearing on 15 May 2017, at which the Applicants represented themselves and gave evidence. On 20 December 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the protection visas.
The application for judicial review of the Tribunal’s decision came before me on 12 September 2023 for hearing. At the hearing, both the Applicants and the First Respondent were represented by counsel.
COURT REVIEW
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
GROUNDS OF REVIEW
The amended application for review filed 14 August 2023 raises three grounds for review. At the review hearing, the Applicants pressed only Grounds 1 and 3, both of which relate to the claims made by the Second Applicant. Those grounds state:
1. The Second Respondent committed jurisdictional error by identifying a wrong issue or asking a wrong question.
Particulars
A.The Second Respondent found that the Second Applicant had been stopped, targeted, insulted and harassed for offences relating to proper hijab wear and proper Islamic dress, and that she wished to be free to wear the clothes she wants to. ([81])
B.The Second Respondent then erroneously assessed the Second Applicant's claim on the basis of the harm which she would face by complying with Islamic standards of dress and whether the dress requirements in and of themselves were a breach of her fundamental human rights or amounted to an intolerable situation. ([81])
C.The Second Respondent ought instead to have considered her application on the basis of what she would do upon return to Iran and the consequences (and harm) which would flow from that behaviour.
[…]
3.The Second Respondent erred jurisdictionally by constructively failing to exercise its jurisdiction in failing to consider or otherwise engage at all with the Second Applicant’s evidence as another female Kurdish university student at who had been imprisoned and raped.
Particulars
A.The Second Applicant gave evidence that her fears of harm were based in part on the experience of another Kurdish university student who was ‘jailed in Tehran’ and raped, and then ‘raped again’.
B.The Second Respondent completely failed to engage with this evidence.
C.The evidence was so significant that the failure to engage with it constituted a failure to perform the statutory task.
D.The Second Respondent’s failure was material for the decision in respect of the Second Applicant because had it engaged with the significant evidence it could realistically have resulted in it being satisfied that the refugee or complementary protection criteria were met by the Second Applicant.
E.The Second Respondent’s failure was material for the decision in respect of the First Applicant because the First Applicant was a member of the family unit of the Second Applicant and thus would be owed consequential protection
BASIS OF TRIBUNAL DECISION
The Tribunal decision addressed claims made by both the First and Second Applicants as to the risk of harm they faced if returned to Iran. Relevant to the grounds of review which are confined to the Second Applicant’s claims, the Tribunal stated at [8] that the claims were:
·As she is a Faili Kurd and a woman she had suffered abuse and harassment, and that the authorities would impute anti-regime sentiments on her due to her ethnicity and the fact that she left Iran. She fears that she will be arrested and tortured; and
·As a woman who does not wish to comply with the strict dress code laws in Iran she has been harassed by authorities and others, and has been denied study opportunities.
The Tribunal further addressed the Second Applicant’s claims and assessed them at [53] to [62] of its reasons, and further considered her claims in light of country information at [79] to [84]. The Tribunal:
(a)Accepted the Second Applicant’s evidence that she was expelled from her university as she did not adhere to the dress code and did not attend student activities, but did not accept that her ethnicity was a factor in her expulsion;[1]
(b)Did not wholly accept her evidence concerning an incident with a security guard at the university, but did accept that he had touched her hair and may have wished to sexually assault her;[2]
(c)Found that the past harm at the university did not indicate a risk of future harm given that the Second Applicant has been permanently expelled from that university and her evidence is that she will not be accepted into another.[3] The chance of future harm from sexual assault is no more than remote;[4]
(d)Found that the denial of the opportunity to attend university does not lead to serious or significant harm, and that she still has employment options available to her;[5]
(e)Found that her claims about the Islamic dress code does not lead to a real chance of persecution;[6]
(f)Accepted, on the basis of country information before it, that particular Iranian laws discriminate against woman, and the Second Applicant would be expected to dress conservatively in line with dress code laws. [7] However, it also found that this was not a breach of the Second Applicant’s fundamental human rights such that it would constitute serious or significant harm,[8] and she does not have a well-founded fear of persecution by reason of being a woman in Iran who breaches Islamic dress codes;[9] and
(g)Was not satisfied that, in her personal circumstances, the Second Applicant would “be subjected to conduct of sufficient severity to amount to persecution and denied protection”.[10]
[1] Tribunal reasons at [58] and [65].
[2] Tribunal reasons at [58] and [65].
[3] Tribunal reasons at [60].
[4] Tribunal reasons at [81].
[5] Tribunal reasons at [60] and [81].
[6] Tribunal reasons at [62].
[7] Tribunal reasons at [79].
[8] Tribunal reasons at [81].
[9] Tribunal reasons at [82].
[10] Tribunal reasons at [80].
APPLICANTS’ CASE
The Applicants relied on their amended application for review filed 14 August 2023, the affidavit of the Applicants’ solicitor Mr Babakarkhil affirmed 14 August 2023, and a written outline of submissions filed 14 August 2023.
Ground 1
In respect of Ground 1, counsel for the Applicants submitted that the Second Applicant is a woman who will not comply with the Islamic dress code in Iran. However, the Tribunal failed to ask whether or not she would comply and as a consequence of this failure, it did not consider the potential harm to her upon return to Iran. This, counsel submitted, ought to have been considered because in Iran she would be required to dress in a particular way and she had stated that she did not wish to do so.
Counsel referred me to High Court judgment in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395/2002”) as authority for two principles relating to this submission. First, that the required assessment is how the Second Applicant individually will be treated on her return to Iran, rather than an assessment of the treatment of “women in Iran who do not wish to comply with the dress code” as a class of person.[11] Second, that the risk of harm to the Second Applicant must be assessed on the basis of what she will do rather what she is entitled to do within the bounds of the law,[12] as the assessment cannot be conducted on the assumption that a person will be “discreet” upon their return.[13]
[11] S385/2022 at [78].
[12] S385/2022 at [83].
[13] S385/2022 at [80].
It was submitted that the Tribunal reasons at [79] state that the Second Applicant “does not wish to wear the hijab” and “wishes to have freedom … in how she dresses” followed by an expression of sympathy for her position, demonstrating that the Tribunal considered her forced compliance as the consequence of her return. Further, that the Tribunal reasons at [81] address purported harm identified and assessed as being forced to comply with the dress code. It did not continue, as it ought to have done, to consider what would happen in the event of her non-compliance.
Counsel acknowledged that the Tribunal raised the possibility of the Second Applicant’s non-compliance in its reasons at [82] by identifying her as a member of a group of women who “breach Islamic dress/morality codes”. However, he submitted that the Tribunal did not meaningfully engage with this or the consequences of it elsewhere in the reasons.
Despite there being evidence that the Second Applicant would not conform with the dress code,[14] the error by the Tribunal was submitted to lie in going straight to consider the harm the Second Applicant would reasonably face on the assumption that she would conform with the dress codes.[15]
[14] Court Book on page 104 at [6].
[15] Referring to the Tribunal reasons at [79] to [81].
Further, the Tribunal did not engage in consideration of the country information relevant to potential harm if she did not comply when the evidence was before it.[16] There was no reference to this information and it can be accepted that this indicated the Tribunal did not consider the relevant risk of harm the Second Applicant would likely face on return.
[16] Affidavit of Mr Babbakarkhil filed 14 August 2023 in Annexure 1 on page 520 at [30].
In view of the nature of the risks of harm described in the country information, including risk of arrest and imprisonment of women appearing without the hijab, if the Court agrees that there was a failure to consider a relevant risk of harm, the error should be taken to be a material error as a reasonable decisionmaker taking this into account may well arrive at a different conclusion.
Ground 3
In respect of Ground 3, counsel alleged a constructive failure by the Tribunal to exercise its jurisdiction by failing to consider the experiences of the Second Applicant in the context of evidence of another woman, who was also Kurdish, who had been dismissed from university, and jailed and raped in Tehran.
It was submitted that these third-party experiences have a direct bearing on the Second Applicant’s claim of harm due to the factual similarities in her circumstances and theirs. Counsel argued that the Tribunal did not challenge the evidence of the imprisonments and rapes during the hearing, and they are not addressed in the Tribunal’s reasons.
Counsel identified the points at which it could be expected that the Tribunal reasons would address that evidence as [58], [59], and [66] of its reasons, being where the Tribunal assessed the Second Applicant’s experiences with a security guard on the university campus, and the likelihood of it indicating a future risk of harm.
The Court was taken to the evidence given by the Second Applicant during the Tribunal hearing and that she made it clear that she feared harm based on the experience of another Kurdish student.[17] This evidence was said to have been overlooked and counsel submitted that if it had not been, it can realistically be expected that the Tribunal may have been satisfied of the refugee or complementary protection criteria.
[17] Affidavit of Mr Babbakarkhil filed 14 August 2023 at Annexure 2 on pages 577 to 582.
FIRST RESPONDENT’S CASE
Generally, counsel for the First Respondent submitted that the Applicants’ submissions amount to no more than a complaint about how the Tribunal expressed its reasons. That there was no mention in the reasons about the evidence given concerning the third party is not demonstrative that the evidence was not considered. Instead, it can be seen from the reasons that the evidence was subsumed by the broader context of the claims made by the Second Applicant, and on a fair reading of the reasons, it cannot be said that the evidence and claims were overlooked.
In answer to Ground 1, the First Respondent submits that the Court should not infer that the Tribunal did not address a relevant claim by the Second Applicant, being that she may experience harm if she returned to Iran and did not conform to dress codes. It was submitted that there was no claim of harm based on the Second Applicant not conforming to dress code requirements,[18] and further, that the Tribunal dealt with the claims that were made.[19]
[18] First Respondent’s written submissions at [9] and [10].
[19] First Respondent’s written submissions at [11] and [12].
In respect of Ground 3, asserted constructive failure by the Tribunal to exercise its jurisdiction, there was no dispute between the parties about the relevant legal principles.[20] Instead, the First Respondent submits that the Tribunal addressed the Second Applicant’s evidence about the fear of harm based on sexual violence due to her own experience of sexual harassment and knowledge of a Kurdish student who had been jailed and raped in Tehran.[21]
[20] First Respondent’s written submissions at [20].
[21] First Respondent’s written submissions at [21] and [22].
Further, the First Respondent submits that the Court should not infer that the Tribunal did not deal with the claim of fear of sexual violence merely because there is no explicit reference to the evidence given about the third party’s experience in the reasons.
Counsel for the First Respondent also submitted that it is inherently unlikely that the evidence was overlooked as the transcript of proceedings show that the Tribunal directly engaged with it during the hearing, and so on a fair reading of the reasons “without an eye attuned to error”[22] the Court cannot draw the inference as sought by the Applicants.
[22] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
EVALUATION
The Tribunal’s conclusion about the risk of harm the Second Applicant would likely face on return to Iran is at [79], [81] and [82] of the reasons. As to the fear of harm based on the evidence given about dress codes, the Tribunal said:
However, I do not accept that the requirement to dress modestly in Iran is a breach of the applicant's fundamental human rights or amounts to an intolerable situation because I find that, although discriminatory, the requirement to dress modestly does not amount to serious harm or significant harm as defined in the Act. I do not accept that the requirement and expectation that she dress conservatively, for the applicant, constitutes physical or emotional harm so severe as to be considered serious or significant harm.
In my view, the above reasons make it plain that the Tribunal was focussed on an assessment of harm which assumed that the Second Applicant would conform to dress code requirements, as it described the Second Applicant conforming as “discriminatory” and not constituting serious harm as defined by the Act. However, this ignores the finding that she had not fully conformed with dress code in the past at times,[23] an indicator that it was reasonably possible or likely that she would not conform in the future.
[23] Tribunal reasons at [65].
I agree that because the Tribunal did not address the claim of harm based on the prospect of future non-compliance with dress code, it consequently failed to ask itself a relevant question and consider an aspect of the Second Applicant’s claims. This constitutes jurisdictional error as discussed and well established by the authorities.[24]
[24] S385/2022;DQU16 v Minister for Home Affairs (2021) 273 CLR 1.
Ground 1 of the application is made out.
Ground 3 of the application does not succeed for the following reasons.
The First Respondent agrees that the Tribunal did not refer to the evidence about the third party’s rape in its reasons. This alone does not demonstrate a failure to consider the evidence given about the Second Applicant’s fear of harm due to the experience of the third party Kurdish woman and student.
While the evidence was relevant to the Second Applicant’s overall claims of harm, I accept the Second Respondent’s submission reliant on Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2013) 236 FCR 593. In my view the Tribunal’s findings and reasons at [60] in particular demonstrate that the fear of imprisonment or rape because of the experience of the student referred to in the Applicant’s evidence was in the context of her own experience at university, but it was not satisfied that the threshold of serious risk of harm was satisfied as she had ceased to study, would not be accepted back into university, was married, and no longer living in Tehran. Further, the evidence was given late in the proceedings and was not the subject of earlier claims, and it can be inferred that the Tribunal gave it little weight.
As Ground 1 is made out, the application is allowed and the relief sought is granted.
An order for costs is sought in the amended application. If the parties reach agreement about the terms of the costs order that should be made, they should submit a minute of consent order to Chambers. Alternatively, if there is a dispute as to costs, the parties have liberty to seek an appointment before the Court by sending an email to [email protected].
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 12 January 2024
0
6
1